Guidelines to Buying the Right Car Insurance in Nevada

               I frequently counsel people about what the appropriate car insurance coverage is after a car accident. Far too many times coverage is inadequate when an accident happens. Since it is the coverage that is in effect on the date of the accident that applies, I counsel clients about coverage after it is too late.

               I always go over what changes should be made for the future but, as I say, this does not apply to the accident before the changes. This article is written to provide guidance when considering what insurance coverage to buy now – before an accident.

               We must first draw a distinction between those from whom you may receive advice: the insurance agent, the insurance adjuster, and the lawyer. The attorney will have the best perspective.

Insurance Agent

               An insurance agent sells you your “insurance policy.” She represents the insurance company and herself. The incentive for the agent is to sell you insurance and make money doing it. She must adhere to guidelines set by the insurance company regarding malpractice. They are typically the least informed about legal repercussion concerning coverage.

Insurance Adjuster

               The insurance adjuster represents the insurance company. Plain and simple: not you. The adjuster evaluates and investigates claims. Their incentive is to keep claim payments low. Indeed they may get bonuses based on how low they keep payment of claims. They too must adhere to guidelines set by the insurance company which should be governed by law. They frequently receive legal opinions regarding how they handle claims. They have a working knowledge of legal issues.

Attorney

               The attorney represents the client’s interest. The attorney you retain to assist you with your claim has a legal fiduciary duty to represent your best interests. He will evaluate, investigate, and advise you about your claim and potential lawsuit. He should be well versed in insurance law and coverage issues. He is also guided by a canon of ethics. 

               The point in distinguishing the agent, adjuster, and attorney is to illustrate that the individual who sells you an insurance policy, the agent, is not most informed about coverage issues. The agent does not deal with claims to collect benefits after an accident. The adjuster does that. But the adjuster represents the insurance company – not you! Therefore you need to know what coverage to purchase and not blindly rely on what the agent or adjuster tells you. The attorney is best trained in this area.

               The following explanation is broken down as follows:

I.               Bodily Injury

a.    Liability insurance protects the other driver

b.    Insurance that protects you:

                                                                                 i.     Medical Payment (Med Pay)

                                                                              ii.     Uninsured/Underinsured Motorist (UM/UIM)

II.            Property damage and other expenses

a.    Property damage

b.    Collision

c.    Rental

I.               Bodily Injury

a.    Liability Insurance protects the other driver

Nevada law requires each driver have a minimum of $15,000 per person and $30,000 per accident “liability coverage.” This means all, non-fault, injured people in an accident can collect a total of $30,000 where no one person collects more than $15,000. Liability coverage costs the most – it has the highest premium – and for good reason: the insurance company charges the most for what you are required by law to purchase. Insurance companies charge less for coverage you are not required to purchase. If they charged more for coverage you are not required to purchase more insureds would opt out of purchasing additional coverage. If the insurance company sells less, they lower their profit.

It is very important to understand that liability coverage protects other, non-fault drivers. In other words, if you cause an accident, the other driver collects from your liability coverage. The more coverage you have, and you can typically buy up to $100,000, the more that is available to the other driver. You never collect from your liability coverage. We will examine the advantages to carrying more liability coverage when we discuss uninsured/underinsured (UM/UIM) coverage below.

Nevada law also requires that you carry property damage. This coverage applies to the car and other property damage to the other vehicle. Your property damage is not paid for under this portion of your policy.

b.    Insurance that Protects You

                                                                                 i.     Medical Payment (Med Pay)

Agents may advise their clients to forego getting optional Med Pay coverage especially if they have health insurance. This is bad advice. While coverage may apply through your health insurance to pay for your medical bills, those companies more times than not require reimbursement from any money received for the accident from the other driver’s insurance company. This is called subrogation.

Conversely, Med Pay does not require reimbursement. Therefore, the insured receives full Med Pay from their insurance policy benefits and recovers from the other driver’s insurance (assuming the other driver has liability coverage).

Finally, Med Pay is a relatively inexpensive premium and form of health insurance and, for the benefits availed, outweighs the increase in premium. Med Pay benefits offered to an insured vary but can range from $1,000 to $100,000.

                                                                     ii.     Uninsured/Underinsured Motorist Coverage (UM/UIM)

In the event a driver is driving unlawfully, with no insurance, or carries minimal and inadequate coverage, you can recover from the UM/UIM portion of your policy.

This is very important coverage to have and is frequently over looked and not purchased. Here is why that is a very dangerous choice.

Suppose, for example, that a mother and her two children are coming home after grocery shopping and are stopped at a red light at a busy intersection. Suddenly there is collision in front of them resulting in one care flipping and crushing the front hood of the car that mom and the two kids are in. One of the children’s feet is crushed and the mother receives glass in her fact resulting in blindness.

Now suppose there is $100,000/$300,000 liability coverage on mom’s car and 0 UM/UIM coverage, and 0 Med Pay. The other driver carries the state law minimum liability coverage of $15,000 per person and $30,000 per accident.

This results in distributing $30,000 to all injured people (save the at-fault driver). Assuming no one else is hurt, that means mom and child collect $15,000 from the other driver’s liability policy; this is obviously inadequate compensation for the injuries. Had mom also purchased UM/UIM she would have availed herself and her child that extra coverage – up to $100,000. The same is true for Med Pay; that money would have gone to pay medical bills.

It is important to realize that going after the at-fault driver personally (that is, after collecting from his insurance) will typically result in bankruptcy protection and most attorneys will not pursue that course of action.

Protecting yourself with adequate coverage is very important. Planning insurance coverage is prudent because we cannot plan accidents. UM/UIM benefits typically range from $15,000 to $100,000 per person and $30,000 to $300,000 per accident.

As pointed out earlier, there are advantages to having more liability coverage; one of them is to avail higher UM/UIM coverage. Nevada allows insurance companies to limit the amount of insurance that protects you in an accident – UM/UIM – to the amount of coverage you purchase that protects other drivers – liability. You can only have as much UM/UIM as you have liability coverage. In other words, you cannot have $15,000 liability and $100,000 UIM; although, since UM/UIM is much cheaper and protects you, that would be desirable. You can, however, have $100,000 liability and $15,000 UM/UIM; this results in higher premiums for liability coverage and decreased protection.

You want to be sure to carry as much UM/UIM coverage as liability coverage. That is all you can have; it’s cheaper and it protects you. This is why you should consider higher liability coverage; to be allowed to buy more UM/UIM.

II.            Property Damage and Other Expenses

a.   Property Damage

Property damage is included with liability coverage. In other words, when you purchase mandatory liability coverage, property damage is included. For example, “15/30/10 is injury coverage of $15,000 per person, $30,000 per accident, and $10,000 property damage. This coverage, like liability, protects the other person’s car when you are at fault.

It is important to distinguish property damage from personal injury coverage. Very often people will consider themselves “fully covered.” What they are saying is that their car is fully covered; meanwhile their bodies and injuries are not.

b.    Collision

This coverage you can opt to buy. The cost depends on the deductible you choose, the value of the car you are insuring and your driving records, among other things. This coverage protects your car regardless of fault.

c.    Rental

The other at-fault driver’s insurance company is responsible for your rental costs where no dispute exists and the losses are reasonable. This may take a while to determine, in terms of days or weeks, pending the insurance company’s investigation.

If you opt to buy rental coverage, you can have a car immediately and let your insurance company worry about collecting from the at-fault driver’s insurance company.

Conclusion

     Since we do not plan for accidents, the only thing we can do to avoid tragedy as much as possible is to plan our insurance coverage. Nevada embodies an insurance system that entitles you to purchase different coverage.

       If you would like further explanation of the types of coverage you ought to have to protect you and your family, or if you are currently in a dispute with an insurance company regarding coverage, you can contact me, Tim Titolo at tim@titololawoffice.com or 702.869.5100.

       My web site is http://www.titololawoffice.com. I also publish several blogs. The Brain and Spine Injury Law Blog, Truck Accident Blog, Las Vegas Injury Attorney Blog, and Tim Titolo. You can visit any of these sites and get a good idea of the type of cases I handle regularly. You can also get to know me by seeing and hearing me. 

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The U. S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) is pleased to announce the next step in the rollout of Comprehensive Safety Analysis 2010 (CSA 2010).

CSA 2010 Data Preview
Commercial motor vehicle carriers may now view their individual safety assessments on the Data Preview Website. This updated Website provides motor carriers with information on where they stand in each Behavior Analysis and Safety Improvement Category (BASIC) based on roadside data and investigation findings. Each motor carrier’s BASIC assessments are visible only to them (and to enforcement staff) until December of 2010. In December, assessments will be made available to the public. Also, enforcement agencies will use these assessments to prioritize the Agency’s enforcement and compliance assistance workload. By providing carriers with this information now, FMCSA’s approach gives carriers the earliest possible opportunity to improve compliance.

FMCSA is providing motor carriers with this early look at the new Safety Measurement System (SMS) so they can see their performance data, can address safety compliance issues right away and can update and verify their data online. Release of this safety performance information underscores FMCSA’s commitment to data integrity and the motor carrier industry’s responsibility for ensuring commercial vehicle safety. This important step is designed to allow motor carriers to identify and address unsafe behaviors that can lead to crashes. What can motor carriers do now to prepare for the new system? Motor carriers should look at their assessment on the Data Preview Website, identify any data mistakes, verify and update their motor carrier census data, in particular power units (PU) and vehicle miles travelled (VMT) on the MCS-150 form, and take the necessary steps to correct unsafe driver and/or company safety practices.

Last year I handled a case where one motor carrier failed to review another hired motor carrier's Safe Stat scores which hovered around a 97 which put it in the bottom 3%.  This type of negligent, even reckless. behavior may be reduced with new procedures like the new regulations being tested and passed. 

Conservative Republicans scream "no government regulation" until one of their own is critically injured in a crash with a semi tractor trailer.  Without regulation, truck corporations are governed by only one thing - profit.

More Information
Complete details on the Data Preview are available through Data Preview Guidance (FAQs), the new SMS Methodology Version 2.0 and SMS Changes Explanation. FMCSA has responded to field test results and stakeholder feedback to improve SMS.

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The Federal Motor Carrier Safety Administration was created in 1980 to regulate big rig, tractor and trailer trucks. These regulations spell out the responsibilities of drivers and expectations of the public who drive on the roads with these trucks. An attorney must be not only familiar with these regulations but fluent in them.

The trend of trucking deregulation that started over 20 years ago has not materially changed original regulatory schemes governing required insurance and financial responsibility. Motor carriers operating under federal permits and intrastate carriers operating under state authority must still secure liability coverage in order to maintain an operating permit or otherwise provide proof of ability to self insure. Typically statutory coverage of this nature is implemented through a two-part process which involves a public filing and an endorsement. Motor carriers or their insurers will make a filing with the appropriate agency as proof that insurance coverage has been issued conforming to the applicable regulation or statute. The endorsement conforms the motor carrier's coverage to the relevant requirements of the law governing the truckers' operations. In this manner, the insurance is extended to protect the public from accidents or negligent operations.
 

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 Overview of Catastrophic Cases

Timothy R. Titolo

What Constitutes a Catastrophic Injury?

For many, the term “catastrophic injury” needs no definition. Most know a catastrophe when they see one. Federal law defines “catastrophic injury” as an injury whose consequence permanently prevents an individual from performing any gainful work. 42 U.S.C.A. § 3796b.Moreover, Nevada law includes a serious illness or accident that renders the employee unable to perform his/her duties and is either life threatening or requires a lengthy convalescence as a “catastrophe” for purposes of a public employee who wishes to take "catastrophic leave".Nev. Rev. Stat.§ 284.362; Nev. Rev. Stat.§ 281.153.

Types of Catastrophic Injury

Although Nevada law does not specify the various types of catastrophic injuries, the following classification from Georgia statute provides a good overview of examples of catastrophic injuries:

(a) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

(b) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

(c) Severe brain or closed-head injury as evidenced by:

1. Severe sensory or motor disturbances;
2. Severe communication disturbances;
3. Severe complex integrated disturbances of cerebral function;
4. Severe episodic neurological disorders; or
5. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in subparagraphs 1.-4.;

(d) Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;

(e) Total or industrial blindness; or

(f) Any other injury that would otherwise qualify under this chapter of a nature and severity that would qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act as the Social Security Act existed on July 1, 1992, without regard to any time limitations provided under that act.

Ga. Code Ann., § 34-9-200.1.

Evaluating Liability and Damages

The Supreme Court of Nevada has held that damages in personal injury cases should be calculated based on modicum of rationality and not with mathematical precision. See Greco v. U.S., 893 P.2d 345, 418 (Nev. 1995). In Hill v. U.S, 854, F. Supp, 727 (D. Colo., 1994), the federal district court in Colorado considered the following facts in evaluating the economic damages in a catastrophic injury claim:

1.      Expenses for periodical medical care that is required during the lifetime of the injured with regard to the nature of injury suffered. See id. at 730.

2.      Expenses for present and future medication and supplies with regard to the nature of the injury suffered. See Id.

3.      Expenses for providing and facilitating required personal care to the injured depending upon the nature of the injury. See id.at 730-31.

4.      Expenses for providing psychological counseling to the family members of the injured to cope with the injured person’s demands and need and to assist them in providing care to the injured. SeeiId.at 731.

5.       Expenses for appointing case management professional to assist in the planning, coordinating and supervising the care of the injured depending upon the complexity of the medical and physical care services required by the injured. See id.

6.      Expenses for the special transportation facilities that the injured person’s physical impairment requires. See id.

7.      Expenses for developmental assessment to monitor the developmental progress and to access the injured person’s needs. See id.

8.      Expenses for rehabilitation services to give required physical therapy and other therapies such as occupational therapy, speech therapy etc., depending upon the nature of the injury. See id.

9.      Expenses for special equipments required for the injured. See id. at 732.

10. Expenses for home modification that is required by the family to modify the home to accommodate injured person’s special equipments and needs. See id.

Apart from the above, economic damages are also awarded on the basis of future loss in earning capacity. See id.

Evidentiary Issues

            I am writing from the perspective of a practitioner and have attempted to provide an overview of the evidentiary issues associated with litigating catastrophic injury claims, especially from the plaintiff’s perspective. My intent is not to provide an academic discussion that covers all aspects of this topic. However, for a deep and detailed discourse, please see 72 Am. Jur. Proof of Facts 3d § 363 (2007) which discusses these issues in the catastrophic brain injury context. I have used the foregoing resource as a reference point for organization and to identify key points.

Injury:

More often than not, in a catastrophic injury, particularly a traumatic brain injury, the injured person exhibits memory deficits. Even though such people cannot describe the situation exactly, the occurrence of the injury has to be ascertained by the circumstances surrounding the accident/incident. It is the duty of plaintiff's counsel to carefully analyze all available evidence about the accident and endeavor to integrate each of those facts into a cohesive narrative that shows the finder of fact that the defendant acted in a negligent manner. Plaintiff’s counsel should supplement the plaintiff’s deposition testimony with other prior statements if the plaintiff is unable to recall the facts of the accident. Counsel should be mindful, however, that such deposition testimony should corroborate rather than contradict the plaintiff's prior statements or testimony.

Elements to Establish:          

            The necessary elements to establish negligence by the defendant are long-established: a legal duty to the plaintiff, a breach of that duty, and damages proximately caused by the breach of duty. It is the plaintiff's ability to establish a prima facie case through circumstantial evidence which is of particular importance in claims involving traumatic brain injuries given the frequent inability of brain-injured clients to recall the specific facts surrounding their injuries. If the case is based on circumstantial evidence, the plaintiffs must present facts from which the defendant's negligence and causation of the accident by that negligence may be reasonably inferred.       

            Generally, causation of a medical condition and permanency of an injury must be established by testimony of medical experts. Such testimony must show that the indicators of a permanent disability resulting from the traumatic brain injury outweigh those to the contrary. Claiming damages for loss of earning capacity is generally recoverable when such loss is an immediate and necessary consequence of an injury.

Duty to plaintiff and the court’s view:

            In the context of a brain injury case, whether defendant has a duty to the plaintiff is a question of law that has to be decided by the court. Once the court determines that one party owes a duty to another, it is important to know the scope and extent of the duty, namely the standard of care that the defendant had to meet and the actual care that the defendant took. Once the court has determined the appropriate standard of care, the jury addresses the factual question of whether that duty has been breached.

            Further, there is no legal requirement that a jury make a damage award simply because liability is found. In determining the appropriate amount of compensation for such loss, the jury must consider the plaintiff's age and occupation, the nature and extent of the plaintiff's pre-injury employment, the value of the plaintiff's services and the amount of income that the plaintiff was earning at the time of injury. For ascertaining the damage, expert testimony is not certainly required, but it may be of assistance to the jury, especially on the issue of lost earnings. However, plaintiff's personal projection of future loss of earnings may be admitted where the future plans described by plaintiff are consistent with facts in evidence regarding his or her employment and educational history and where the plaintiff's projections are supported by expert medical testimony.

Damages:

A plaintiff may make a claim for money damages including actual damages, compensatory damages (including reimbursement for attorney fees and for retaining experts, compensation for medical injuries, subsequent injuries, disability, compensation for lost earning capacity, and plaintiff's personal projection of future loss of earnings). Any award of punitive damages is completely within the discretion of the fact-finder.

Plaintiff’s counsel should also be mindful of the duty to mitigate damages. In Nevada, the law regarding the mitigation of damages states that “[a] person who has been damaged by the wrongful act of another is bound to exercise reasonable care and diligence to avoid loss and to minimize the damages, and he may not recover for losses which could have been prevented by reasonable efforts on his part or by expenditures that he might reasonably have made.”Lublin v. Weber, 108 Nev. 452,454 833 P.2d 1139, (Nev., 1992); Silver State Disposal Co. v. Shelley, 105 Nev. 309, 774 P.2d 1044 (Nev., 1989). Defense counsel should, of course, explore any possible failure to mitigate by the plaintiff as a potential defense to avoid or reduce a damages award.

The Nevada collateral source rule prohibits the jury from reducing the plaintiff's damages on the ground that the plaintiff received compensation for his injuries from a source other than the tortfeasor. Nev. Rev. Stat. § 17.130;Bass-Davis v. Davis, 134 P.3d 103, 110-11 (Nev. 2006). Plaintiff’s counsel should be mindful to object to any attempts by the defense to introduce evidence of other sources of compensation for the plaintiff. Introduction of such evidence can lead to a new trial for the plaintiff. See Davis, 134 P.3d at 111.

            Generally, litigation discovery is governed by Fed. R. Civ. Pro. 26 for federal trials and Nev. Rev. Stat. Rule 16.2(b)(2) for Nevada state court litigation. However, my discussion is aimed at providing an overview of some of the specific discovery issues that arise in the catastrophic injury context. For a more detailed discussion, I refer you once again to 72 Am. Jur. Proof of Facts 3d § 363 (2007), which I have used to help organize this discussion and to identify salient points for this overview.

1)      Information to be obtained from the plaintiff prior to commencement of litigation:

The discovery methods in such cases require a thorough prior knowledge of all the previous incidents surrounding the plaintiff’s injury to maximize the results of the trial for the plaintiff. Discussion with the plaintiff about the mechanism of injury, resulting symptoms and long term effects serves as a primary source of information. Plaintiff’s counsel may obtain necessary information from potential witnesses such as the physicians who treated the plaintiff both prior and/or subsequent to the injury, information from the family members of the injured describing the affect, frustration, post-injury emotional distress, and information from the plaintiff’s employer, and co-workers about the changes they have noted in the plaintiff’s ability to work.

2)      Information to be obtained from medical expert.

The next step in the preparation of the discovery proceedings would be to consult the expert who will be called at trial as part of the plaintiff’s case. Besides obtaining the background information of the expert, the other important information to be obtained from the expert is his prior litigation history mentioning the percentage of cases in which the expert testified on behalf of the plaintiff and the defendant and also the educational and employment qualifications. Counsel should ask the expert regarding the date, location of the first contact with the plaintiff, the occasions on which the plaintiff will require treatment, tests performed (and the nature of the tests and their purpose and results), and the treatment provided to the plaintiff. Plaintiff’s counsel should pose questions to the expert regarding the expert’s opinion about the medical certainty that the plaintiff suffered an injury, cause of the injury, signs, symptoms, complaints, whether the problems exhibited by plaintiff were the result of that injury, and whether any pre-existing conditions have been distinguished from the injuries at issue.

3)      Information to be obtained from economist or other expert regarding special damages

Plaintiff’s counsel must collect necessary information from economists or other experts being called in support of the plaintiff’s claim of damages, especially in cases where the plaintiff has lost his earning capacity. Expert opinion as to the plaintiff’s lost earnings should address losses suffered as a result of plaintiff's inability to perform household tasks, plaintiff's future costs for medical care, reduction of such amounts to present value and methodology for calculating present value.

Conclusion

 A catastrophic case should not be taken lightly.  There are ethical and legal considerations.  Damages must be explored and developed properly.  An inability to finance the development of damages may make an otherwise good case bad.  An astute lawyer will recognize her limitations and ask for a more experienced lawyer’s help.

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